Opinion
No. 04-15-00759-CR
02-22-2017
Corey Julian GABRIEL, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR11671
Honorable Jefferson Moore, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
A jury convicted appellant Corey Julian Gabriel of two counts of aggravated sexual assault and one count of aggravated robbery. Based on the jury's recommendation, the trial court sentenced Gabriel to life in prison. On appeal, Gabriel Raises two points of error challenging the trial court's denial of his motion to suppress and one point of error challenging the trial court's denial of his motion for mistrial. We affirm.
BACKGROUND
Officer Julio Cabrera with the San Antonio Police Department responded to a call for a sexual assault and robbery. When he arrived, the complainant, C.B., told the officer that as she waited for her gym to open, a man with a gun sexually assaulted and robbed her. C.B. described her assailant as male, 5'11", with brown eyes, medium complexion, and a slight build. She told Officer Cabrera the assailant was wearing a ski mask, a dark sweater, and jeans. C.B. later described the gun to another officer, telling him the gun was a black handgun with a silver tip around the barrel. According to the complainant, the attack took place in front of her as she waited for it to open. She advised that after the attack, the perpetrator ran toward some nearby apartments. Although officers immediately began a search, they were unable to locate the suspect. At trial C.B. gave specific details about the assault and robbery. Although, she was unable to identify Gabriel as her attacker, she stated his eyes looked similar to those of her attacker. After the assault, C.B. was taken for sexual assault examination during which the nurse collected fingernail scrapings and labial swabs for DNA testing.
Several months later in the early morning hours, SAPD Officer Christopher Torres was dispatched to a San Antonio apartment complex. As the officer drove through the parking lot, he noticed as SUV with its door ajar. When he made a second pass, he saw the SUV's door was closed. Officer Torres stopped to investigate. He saw someone hiding under a pick-up truck parked next to the SUV. The officer later determined the person was Gabriel and identified him in court as the man hiding underneath the truck. Officer Torres stated Gabriel was attempting to hide from him. The officer ordered Gabriel to come out and asked why he was hiding. Gabriel told the officer he was outside his apartment to check on his vehicle and smoke a joint. The officer noticed a strong of marijuana coming from the vehicle. In the bed of the truck, Officer Christopher Ruiz — who was there as back up for Officer Torres — found a backpack, which contained, among other things, two black ski masks, clothing, and a loaded gun. The gun was a Smith & Wesson .40 caliber handgun, black with a chrome barrel lining. Gabriel, who was not wearing a shirt when he was found under the truck, asked Officer Torres for a t-shirt from the backpack, suggesting the backpack belonged to Gabriel. Gabriel was arrested for possession of marijuana.
Pursuant to an instruction from the trial court, the State was precluded from eliciting testimony about the nature of the dispatch. The State was permitted only to elicit the statement that the officer was on patrol and was dispatched to a particular apartment complex.
Detectives soon discovered Gabriel matched the description of C.B.'s assailant, was found with two black ski masks, and lived near the location where C.B. was attacked. Accordingly, they had Gabriel taken to the hospital for evidence collection. Gabriel consented to this procedure. Subsequent testing showed Gabriel could not be excluded as C.B.'s assailant.
The State charged Gabriel with two counts of aggravated sexual assault and one count of aggravated robbery. Ultimately, a jury found him guilty as charged, and based on the jury's recommendation, the trial court sentenced Gabriel to life on each count, with the sentences to run concurrently. Thereafter, Gabriel perfected this appeal.
ANALYSIS
In his first two points of error, Gabriel contends the trial court erred in denying his motion to suppress, arguing officers lacked probable cause to arrest him for possession of marijuana, and the search and seizure of his backpack and its contents was conducted without a warrant. In his third point of error, Gabriel argues the trial erred in denying his motion for mistrial during the punishment phase. Gabriel complains he was entitled to a mistrial when, during deliberations, a juror opened zipped pockets of the backpack and found a bottle of cologne that linked Gabriel to an extraneous offense presented during the punishment phase.
Motion to Suppress
Gabriel challenges the trial court's denial of his motion to suppress on two bases: (1) lack of probable cause for arrest; and (2) improper warrantless search and seizure of the backpack. Each challenge is based on the same set of facts and both were heard and decided at a single hearing. The State counters, arguing the officer had probable cause to arrest Gabriel, and the search and seizure was proper because it was incident to the arrest. The State also argues Gabriel lacked standing, having abandoned the backpack in the bed of a vehicle he did not own.
Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). A trial court abuses its discretion if its decision is arbitrary, unreasonable, or "outside the zone of reasonable disagreement." Id. We conduct a bifurcated review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). In this bifurcated review, we give almost total deference to a trial court's determination of historical facts, especially if those determinations turn on witness credibility or demeanor, Furr, 499 S.W.3d at 877, but review de novo purely legal questions and the trial court's application of the law to facts not based on an evaluation of credibility and demeanor. Turrubiate, 399 S.W.3d at 150; State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011). When deciding a motion to suppress evidence, the trial court is the exclusive trier of fact and judge of the witnesses' credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmon v. State, 456 S.W.3d 594, 602 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd.). Accordingly, a trial court may choose to believe or disbelieve all or any part of a witness's testimony. Carmon, 456 S.W.3d at 602 (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc)). Moreover, if, as here, the trial court makes express findings of fact, we view the evidence in the light most favorable to the ruling and determine whether the evidence supports those factual findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). In other words, we do not engage in our own factual review, but determine only whether the record supports the trial court's factual findings. Carmon, 456 S.W.3d at 602.
Moreover, the prevailing party is entitled to "the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence." State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). When all evidence is viewed in the light most favorable to the trial court's ruling, an appellate court is obligated to uphold the ruling on a motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. See Valtierra, 310 S.W.3d at 447-48; Ross, 32 S.W.3d at 856.
Probable Cause for Arrest
Under the Fourth Amendment, a warrantless arrest is unreasonable per se unless it fits into certain well-established and delineated exceptions. Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (en banc) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 (1993)). In Texas, a police officer may arrest an individual without a warrant if probable cause exists and the arrest falls within one of the exceptions set out in the Texas Code of Criminal Procedure. Torres, 182 S.W.3d at 901; see TEX. CODE CRIM. PROC. ANN. art. 14.01-.04 (West 2015 & Supp. 2016). Probable cause for a warrantless arrest requires an officer to have a reasonable belief that, based on the facts and circumstances within his personal knowledge or of which he has reasonably trustworthy information, an offense has been committed. Torres, 182 S.W.3d at 901-02. Article 14.01(b) provides that an officer may arrest an offender for any offense committed in his presence or within his view. TEX. CODE CRIM. PROC. ANN. art. 14.01(b). The Texas Court of Criminal Appeals has long held that an offense "is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence." State v. Steelman, 903 S.W.3d 102, 107 (Tex. Crim. App. 2002) (citing Clark v. State, 117 Tex. Crim. 153, 35 S.W.2d 420, 422 (1931)).
At the motion to suppress hearing, Officer Torres testified he was dispatched to an apartment complex to assist another officer with regard to an alleged burglary in progress. When Officer Torres arrived around 3:00 a.m., he was directed to patrol the parking lot of the complex to look for possible witnesses or suspects. As he patrolled, he noticed the driver's door of a Nissan Xterra was ajar, which he found unusual. The officer turned his car around, noticing the door of the Xterra was now closed Officer Torres stopped to investigate and noticed someone's feet sticking out from under a pickup truck parked next to the Xterra. The officer ordered the person — later identified as Gabriel — to come out. Gabriel complied. Gabriel was wearing shorts and shoes, but no shirt. Officer Torres stated that as he got closer to the vehicle he noted a "strong odor of marijuana." He asked Gabriel what he was doing in the parking lot. Gabriel told the officer he came outside to check on his vehicle and "decided to smoke a joint." When the officer opened the door of the Xterra, "smoke came out of the vehicle." Officer Torres then placed Gabriel under arrest for possession of marijuana.
In its findings of fact, the trial accepted Officer Torres's testimony, finding:
1. While patrolling the parking lot, Officer Torres noticed the door of a Nissan Xterra was ajar.
2. The officer turned around and on his second pass by the Xterra, he noticed the door was no longer ajar.
3. When he got out of his patrol car to investigate, he noticed the smell of marijuana coming from the Xterra and saw a pair of legs sticking out from a pickup truck parked next to the Xterra.
4. Officer Torres ordered the person out and Gabriel emerged wearing only shorts.
5. When asked why he was under the truck in the middle of the night, Gabriel stated he was checking on his vehicle and decided to smoke a joint. Gabriel further stated
when he saw the officer "he got scared and hid."
6. A "joint" is a common reference to a marijuana cigarette.
7. Officer Torres arrested Gabriel for possession of marijuana based on the odor of marijuana and Gabriel's admission to smoking marijuana.
The trial court concluded, based on the foregoing, that Officer Torres had probable cause to arrest Gabriel. The trial court concluded the officer's detection of the marijuana odor and Gabriel's admission to smoking the drub, gave him probable cause to arrest Gabriel for possession.
Gabriel argues Officer Torres lacked probable cause because he did not see Gabriel smoking marijuana, did not see any marijuana, and did not see any drug paraphernalia. Rather, the officer merely smelled marijuana and odor alone is insufficient to support a finding of probable cause for purposes of arrest. In support of his argument, Gabriel first cites State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002). In that case, the court held "the mere odor of burning marijuana did not give the officers probable cause to believe [the defendant] had committed the offense of possession of marijuana in their presence." Id. The court held that marijuana odor "standing alone" is insufficient to support a finding of probable cause. Id. The court explained an officer "must have specific knowledge to believe that the person to be arrested has committed the offense." Id. In Steelman, the officers had only an unsubstantiated tip that someone in the apartment was dealing drugs coupled with the odor of marijuana emanating from the apartment. Id. at 104. There were four men in the apartment, but none were seen with marijuana or drug paraphernalia prior to the arrest and subsequent search. Id. The court held the officers lacked probable cause to arrest a particular person for possession of marijuana under the circumstances. Id.
Gabriel also points to a litany of cases in which the courts found probable cause for arrest when an officer smelled marijuana, but only if the officer also saw marijuana or marijuana paraphernalia. See Wisenbaker v. State, 311 S.W.3d 57, 61-62 (Tex. App.—San Antonio 2010, no pet.) (holding officers had probable cause where they smelled odor of burnt marijuana, saw cloud of smoke inside residence, and saw defendant holding marijuana pipe); McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003) (holding officer had probable cause where he had substantiated tip, observed cloud of marijuana smoke above defendant and marijuana cigarette on the ground next to him); Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. [Panel Op.] 1979) (holding officers had probable cause where officers saw defendant smoking what appeared to be marijuana cigarette and smelled odor of marijuana emanating from vehicle).
We find the authorities cited by Gabriel distinguishable and agree that based on the facts found by the trial court, Officer Torres had probable cause to arrest Gabriel. In other words, we hold the trial court did not abuse its discretion in concluding Officer Torres had a reasonable belief, based on the facts and circumstances within his personal knowledge, that Gabriel committed the offense of possession of marijuana. See Torres, 182 s.W.3d at 901-02.
Here, contrary to Steelman, Officer Torres had more than "the mere odor of burning marijuana" to support his belief that Gabriel committed the offense of possession of marijuana. In addition to the smell of marijuana, Gabriel admitted to Officer Torres that he was smoking a joint — a marijuana cigarette. In Estrada v. State 154 S.W.3d 604, 609 (Tex. Crim. App. 2005), the court held an officer had probable cause when he could smell marijuana on the defendant and emanating from the defendant's house and had information that minors had been drinking alcohol and smoking marijuana in the defendant's house. Although the court reiterated the holding from Steelman that odor alone is insufficient to support probable cause, the Estrada court held the officer had more than just the odor of marijuana — he had admissions from the minors that they had been smoking marijuana in the defendant's residence. Id. at 608-09. The odor of burnt marijuana coupled with the minors' admissions provided the officer with probable cause. Id. at 608-09.
Here, Officer Torres testified to a strong odor of marijuana emanating from the area where Gabriel was hiding, a cloud of marijuana smoke coming from Gabriel's vehicle, and Gabriel's admission that he smoked a joint, i.e., a marijuana cigarette. Thus, we hold the trial court did not err in determining that the totality of the circumstances supported the officer's reasonable belief, based on the facts and circumstances within his personal knowledge, that an offense had been committed in his presence. See TEX. CODE CRIM. PROC. ANN. art. 14.01(b); Torres, 182 S.W.3d at 901-02. We therefore hold the trial did not abuse its discretion in concluding Officer Torres had probable to arrest Gabriel, and we overrule his first point of error.
Illegal Search and Seizure
Gabriel next contends the trial court erred in denying his motion to suppress the search and seizure of his backpack. He first contends that because the arrest was illegal, the search and seizure of the backpack was "fruit of the poisonous tree," and evidence seized from the backpack must be suppressed. See Pineda v. State, 444 S.W.3d 136, 143 (Tex. App.—San Antonio 2014, pet. ref'd) (citing United States v. Portillo-Aguirre, 311 F.3d 647, 658 (5th Cir. 2002) (holding that under the fruit of the poisonous tree doctrine, all evidence derived from illegal actions by law enforcement must be suppressed unless State shows there was break in chain of events sufficient to refute inference that evidence was product of Fourth Amendment violation). However, because we have held the trial court was within its discretion in determining Officer Torres had probable to arrest Gabriel, this portion of Gabriel's argument relating to the search and seizure of the backpack fails. Gabriel, however, has a second contention with regard to the backpack, arguing that even if the arrest was legal, the search and seizure of the backpack was unreasonable because the backpack was not within his immediate control when it was seized and searched. The State counter, arguing the trial correctly concluded the search and seizure was proper (1) as a search incident to arrest, or alternatively, (2) because Gabriel lack standing to contest the search and seizure, having abandoned the backpack.
The Fourth Amendment of the United State Constitution establishes "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.] U.S. CONST. amend. IV. The crux of the Fourth Amendment is the reasonableness of the search and seizure. Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 2482 (2014). When police officers undertake a search for the purpose of furthering a criminal investigation, "'reasonableness generally requires the obtaining of a judicial warrant.'" Id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). However, a warrantless search can be reasonable if it falls within one of the specific exceptions to the warrant requirement. Id.; State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2014). The exception relevant in this case is known as a search incident to arrest. See, e.g., State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
A search is incident to arrest if it is "substantially contemporaneous" to the arrest and is "confined to the area within the immediate control of the arrestee." Granville, 423 S.W.3d at 410. The Supreme Court and the Texas Court of Criminal Appeals have long construed the phrase "area within the immediate control" as the "area from within which [the arrestee] might gain possession of a weapon or destructible evidence." Arizona v. Gant, 556 U.S. 332, 339 (2009) (citing Chimel v. California, 395 U.S. 752, 763 (1969)); see Granville, 523 S.W.3d at 410. The Supreme Court's interpretation of "area of immediate control" ensures the scope of a search a search incident to arrest is commensurate with the justifications for it: (1) ensuring the arresting officer's safety, and (2) the need to prevent the destruction of evidence. Id.; see Granville, 423 S.W.3d at 410.
At the suppression hearing, Officer Torres testified that when he saw a pair of legs protruding from under the pickup truck he ordered Gabriel to come out. Once Gabriel emerged from underneath the pickup truck, Officer Torres "asked him why he was hiding, what he's doing outside." The officer testified that after Gabriel advised he came outside to check his vehicle and "decided to smoke a joint," the officer approached the Nissan Xterra and opened its door. When he opened the door, "smoke came out of the vehicle." It was at this point the officer arrested Gabriel and handcuffed him. Officer Torres and other officers then began searching the area for narcotics. It was then they saw the backpack — "in plain sight, plain view" — in the bed of the truck under which Gabriel had been hiding. The back pack was subsequently searched by another officer within the view of Officer Torres. Inside the backpack were numerous items, including a .40 caliber handgun, clothing, a ski mask, and a black glove. The officer also found a time card belonging to Gabriel, marijuana, and drug paraphernalia. In its findings of fact with regard to the seizure and search of the backpack, the trial court found that when Officer Torres arrested Gabriel, Gabriel "was within reaching distance of the backpack located in the bed of the pickup truck." The trial court concluded the search was a valid search incident to Gabriel's arrest.
Gabriel argues that because officers searched the backpack after he was arrested and handcuffed, the backpack was not within his immediate control, i.e., not within an area from which he might have gained possession of the handgun found in the backpack or destroyed evidence contained therein. Gabriel suggests no search can be justified as a search incident to arrest once an arrestee is handcuffed or otherwise removed from the area in which the seized item is found. We disagree.
As noted above, the Supreme Court held a search incident to arrest may only include "the arrestee's person and the area 'within his immediate control,'" "meaning the area from which he might gain possession of a weapon or destructible evidence." Gant, 556 U.S. at 339 (quoting Chimel, 395 U.S. at 763). This limitation ensures the scope of a search "incident to arrest" remains within the confines of its purpose of "protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy." Id. When an arrestee cannot reach the area the law enforcement officer seeks to search, the justification for the search incident to arrest exception is absent and the exception does not apply. Id. It is this rationale upon which Gabriel relies.
However, this case, unlike Gant, does not involve a passenger who was removed from a vehicle and a subsequent search of the passenger compartment of that vehicle. See id. Rather, this was a search of a backpack within arm's length of an arrestee at the time of the arrest. Even after Gant, an officer, incident to a lawful arrest, may search the arrestee's person, any items or containers in their possession, and any items or containers that were "located with the arrestee's reaching distance at the time of arrest." United States v. Curtis, 635 F.3d 704, 711-12 (5th Cir. 2011) (emphasis added). And a search is still incident to an arrest for "as long as the administrative process incident to the arrest and custody have not been completed." Id. at 712 (quoting United States v. Finley, 477 F.3d 250, 259 n.7 (5th Cir. 2007).
Here, the evidence supports the trial court's finding that the backpack was within Gabriel's reach once he crawled out from underneath the pickup truck, contemporaneous to the arrest. Based on Officer Torres's testimony, Gabriel was standing next to the pickup while the officer questioned him and opened the door of the Nissan Xterra — this was before he was arrested and handcuffed. Thus, the bed of the pickup truck was within Gabriel's immediate control when he crawled out from under the truck. In State v. Stauder, the court of appeals recognized the bed of a pickup truck "could potentially be within an arrestee's immediate control and, thus, searched in compliance with Chimel (such as where the arrestee has reached into the bed or placed an object in the bed). 264 S.W.3d 360, 364 (Tex. App.—Eastland 2008, pet. ref'd). Here, the hearing record shows the backpack belonged to Gabriel — he asked Officer Torres for a shirt from the backpack and officers found a work schedule with Gabriel's name on it inside the backpack. Gabriel placed the backpack in the bed of the truck and was standing next to it during his interaction with Officer Torres and prior to his arrest. We therefore hold the trial court did not abuse its discretion in concluding the search of the backpack was a valid search incident to Gabriel's arrest and overrule his second point of error.
Motion for Mistrial
Finally, in his third point of error, Gabriel contends the trial court erred in denying his motion for mistrial because the jury received evidence detrimental to the defense after it retired to deliberate. Gabriel argues he was entitled to a mistrial because after the jury retired to deliberate at least one juror received evidence that was neither discussed nor admitted at trial. Specifically, Gabriel asserts there were items in the backpack, which was admitted into evidence, that were not discussed during testimony — a cell phone case, a bottle of cologne, and a pocket knife. Gabriel claims this unadmitted evidence linked Gabriel to the offense for which he was on trial (the cell phone case), as well as an extraneous offense (the bottle of cologne), and inserted his possession of a deadly weapon into the case (the pocketknife). The State argues Gabriel failed to preserve this complaint, but even if he did, the complaint is without merit.
There were other items as well, but Gabriel specifically states those items are not at issue on appeal.
Standard of Review and Applicable Law
Gabriel's complaint is that he was entitled to a mistrial because the jury received evidence that was not admitted trial. In support of this complaint, he relies on Rule 21.3(f) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 21.3(f). Although this rule speaks to the granting of a new trial as opposed to a mistrial, courts have applied this rule whether the complaint was guised as a request for mistrial or as a motion for new trial. See, e.g., Bustamante v. State, 106 S.W.3d 738, 743 (Tex. Crim. App. 2003); Woodall v. State, 77 S.W.3d 388, 392 (Tex. App.—Fort Worth 2002, pet. ref'd).
In reviewing a trial court's ruling in this context, we apply the abuse of discretion standard. Ford v. State, 129 S.W.3d 541, 548 (Tex. App.—Dallas 2003, pet. ref'd); Woodall, 77 S.W.3d at 392. The trial court's decision will not be disturbed absent an abuse of discretion. Woodall, 77 S.W.3d at 392. At a hearing to determine whether a jury received unadmitted evidence to the defendant's detriment, the trial court is the trier of fact and the sole judge of the credibility of the witnesses. Id.
In Bustamante, the Texas court of Criminal Appeals relied Rule 21.3(f) of the Texas Rules of Appellate Procedure in reviewing a motion for mistrial based upon a jury's alleged receipt of evidence that had not been admitted trial. 106 S.W.3d at 742-43; see TEX. R. APP. P. 21.3(f). Rule 21.3(f) provides in part that a defendant must be granted a new trial if, after retiring to deliberate, the jury has received "other evidence." TEX. R. APP. P. 21.3(f). The court held a two-prong test must be satisfied: (1) the evidence must have been received by the jury; and (2) the evidence be detrimental or adverse to the defendant. Bustamante, 106 S.W.3d at 743; see Ford, 129 S.W.3d at 548. When determining whether evidence was "received" by the jury, courts may consider how extensively the jury examined the evidence and whether the trial court gave the jury an instruction to disregard. Bustamante, 106 S.W.3d at 743.
Moreover, whether the evidence in question is "received" by the jury is a question of degree. Garza v. State, 82 S.W.3d 791, 794 (Tex. App.—Corpus Christi 2002, no pet.); Escobedo v. State, 6 S.W.3d 1, 8 Tex. App.—San Antonio 1999, pet. ref'd). To determine whether evidence was received, a court must look to the context in which it was mentioned and the extent to which jurors discussed it. Ford, 129 S.W.3d at 548. "[A] passing remark will not constitute receipt of other evidence." Id.; Martinez, 846 S.W.2d at 350. "[I]t [is] incumbent upon [an] appellant to show that the jury was actually aware of the 'other evidence.'" Gibson v. State, 29 S.W.3d 221, 225 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd).
The record shows that after the jury retired to deliberate, the backpack, which had been admitted into evidence as State's Exhibit 30, was provided to the jury for purposes of deliberation. After the jury found Gabriel guilty, but before it began deliberations on punishment, the trial court discovered there were items in the backpack that were neither mentioned during trial nor placed into separate containers, and those items were still in the back pack when it was provided to the jury. The items included, among other things, the previously mentioned cell phone case, cologne, and pocketknife. The trial court advised the attorneys of the discovery and counsel for Gabriel argued Gabriel was entitled to a mistrial because it was "illegal, improper for the jury to consider things not in evidence." Gabriel's counsel stated "the jury has been tainted by inadmissible, unadmitted evidence."
Items from the backpack that were discussed during the trial — clothing, a mask, the gun, etc. — were admitted into evidence under separate exhibit numbers — 31 and 32.
The trial court denied the motion for mistrial, but brought the jury into the courtroom prior to reading the punishment charge to determine whether any one of them had opened the backpack. One juror advised that he had opened the backpack during deliberations as to Gabriel's guilt or innocence. The trial court excused the remaining members of the jury and questioned the one juror about his interaction with the backpack. The juror advised he opened "two zipper pockets on the front, the small pockets." He stated he saw what looked like a bottle of cologne "and that's about all I — . . . and just odds and ends." He stated he really did not remember anything except for that." The trial court specifically asked the juror if he shared with the other jurors that he had opened the backpack or what he saw, and the juror stated he had not.
Gabriel's counsel also questioned the juror. The juror admitted he picked up the bottle of cologne, looked at it, and then placed it back inside the backpack. He admitted he did this within the presence of the other jurors, but did not know "if anyone was paying attention" to what he was doing. He said the jurors were discussing the backpack and he picked it up and open it out of curiosity because he "felt something in there." The State asked the juror exactly what he did and he stated:
The only thing id did was I opened up and looked, I saw the bottle, picked it up and looked at it. Opened the other pocket, just looked at it and zipped it back up.At that point, the trial court excused the juror and he returned to the deliberation room. The trial court admonished the juror before he retired to the deliberation room not to talk to anyone about what had happened — not the questions posed, his testimony, or anything else. He was specifically advised not to discuss the contents of the backpack with the other jurors. After the juror left the courtroom, the trial court heard argument from Gabriel's counsel, but again denied the motion for mistrial.
The trial court offered to excuse the juror in question, proceeding to argument and deliberations on punishment with eleven jurors, but Gabriel refused. The trial court also offered to admonish the jury to disregard "anything in connection to a cologne bottle that may or may not have been seen." Again, Gabriel declined the offer. After additional concerns from Gabriel's counsel, the trial court offered to ask the remaining jurors if they saw the cologne bottle, but Gabriel did not want the trial court to mention it, worrying it would allow then to infer from the question that the juror had found a bottle of cologne in the backpack.
Based on the foregoing, we hold the trial court did not err in refusing to grant a mistrial — or new trial — based on Rule 21.3(f). Based on the record, we decline to hold the "evidence" was either received or detrimental to Gabriel. See Bustamante, 106 S.W.3d at 743; Ford, 129 S.W.3d at 548. There was no "extensive" examination of the evidence; rather a single juror simply opened the backpack, picked up the cologne, and put it back. See Bustamante, 106 S.W.3d at 743. There was no evidence of other specific items seen by the juror, just "odds and ends." Id. There was no examination of the evidence, much less an "extensive" examination, and in fact, according to the only evidence presented at the hearing, the jurors never even discussed the cologne bottle or the fact that one juror opened the backpack. See Ford, 129 S.W.3d at 548. The juror who opened the backpack specifically testified he did not mention opening the backpack or finding the cologne to any other juror. Id. He could not even say if any other juror saw him open the backpack and remove the cologne. Id. Moreover, Gabriel specifically declined the trial court's offer to instruct the jury to disregard anything in connection to a cologne bottle. Id.
As stated above, "[I] [is] incumbent upon [an] appellant to show that the jury was actually aware of the 'other evidence.'" Gibson, 29 S.W.3d at 225. Here, a single juror was aware of a cologne bottle and some miscellaneous items in the backpack. His discovery was not shared with the remaining members of the jury. Accordingly, we hold that under these facts, even if Gabriel preserved his complaint for our review, the trial court did not abuse its discretion in denying the requested motion for mistrial. We overrule Gabriel's third point of error.
CONCLUSION
Based on our analysis and discussion of Gabriel's points of error, we hold the trial court did not err in denying either the motion to dismiss or the motion for mistrial. We therefore affirm the trial court's judgment.
Marialyn Barnard, Justice Do Not Publish